Hungary and the Rule of Law - Statement of the European Commission in the Plenary Debate of the European Parliament

EP Plenary/Strasbourg

17 April 2013

President,

Minister,

Honourable Members,

I want to thank the President for holding this debate today on a subject which is attracting a great deal of attention.

The European Parliament is the right place to discuss with EU institutions matters related to the values and principles on which the European Union is founded. Today, in representation of President Barroso and on behalf of the European Commission I would like to set out clearly the role and approach of the Commission. I will also give you an overview of where we stand with regard to the specific issues in question.

The Commission has been closely monitoring developments related to the Hungarian Constitutional system since 2011. President Barroso was in this House one year ago to inform you about the Commission position at that time.

Since then, the Commission has played a very active role as guardian of the Treaties. It has assessed the legislation and its compliance with EU law. Infringement procedures were launched. Some of them are pending. Others have been brought to judgment by the Court of Justice. The Commission's interpretation of the EU law has been confirmed. We now expect the Hungarian authorities to fully comply with the judgement.

Allow me to briefly recall the recent developments concerning the situation in Hungary. On 11 March the Hungarian Parliament adopted the Fourth amendment to the fundamental law of Hungary. The week before and, in coordination with the Secretary General of the Council of Europe, Mr. Jagland, President Barroso spoke with Prime Minister Orbán. He communicated the Commission's concern on the conformity of the Fourth Amendment with EU law and with the principle of the rule of law, which represents a core EU value.

On 11 March, President Barroso and Secretary General Jagland issued a joint statement. They expressed the shared concerns of both the Commission and the Council of Europe with respect to the principles of the rule of law, EU law and Council of Europe standards. In this context, allow me to quote Secretary General Jagland who said that: "the Hungarian government is reintroducing the Transitional Provisions which were annulled by the Constitutional Court. This gives the impression that the government is willing to use the two-thirds parliamentary majority to overrule the Constitutional Court, which might endanger the fundamental principle of checks and balances in a democracy." These serious concerns need to be addressed by Hungary. The Commission has therefore appealed to Prime Minister Orbán and his government to address and tackle them in a determined and unambiguous way.

The Commission is currently conducting a detailed legal analysis of the amendments. The Commission's legal analysis is progressing at a steady pace, in an objective, non-partisan and fair manner, in full respect of EU law and principles. This is what we have done in all other situations such as in Romania last year.

We are also working very closely with the Venice Commission of the Council of Europe which will deliver an opinion mid-June on the compatibility of these amendments with the principles of the rule of law.

Based on a first legal analysis, President Barroso wrote to Prime Minister Orbán, on 12 April, expressing the serious concerns of the Commission about the conformity of these amendments with EU law. Prime Minister Orbán replied to this letter on the same day assuring President Barroso of the Prime Minister's readiness to cooperate and to pay full attention to the concerns raised. He also informed the Commission that he had already initiated the necessary steps to address the concerns. He has also reiterated his personal commitment to European norms and values, as well as that of his government's and of the Hungarian Parliament.

Coming back to the letter of President Barroso, this focuses in particular on three main issues:

First, a clause, introduced by Article 17 of the Fourth amendment to the Hungarian fundamental law, on European Court of Justice judgments entailing payment obligations. The implementation of this provision would mean that Hungary would introduce an ad-hoc tax on Hungarian citizens should Hungary be fined for breach of EU law. Is it really sensible to make citizens pay for a tax whenever the state would fail to be in compliance with EU law? In practice citizens would be penalised twice: once for not having had their rights under EU law upheld and a second time for having to pay for this. This could undermine the authority of the Court of Justice and could constitute a violation of the duty of sincere cooperation in Article 4 (3) of the Treaty on the European Union on the part of Hungary;

Second, the broad powers given by Article 14 of the Fourth amendment enabling the President of the National Office for the Judiciary to transfer cases from one court to another. The Council of Europe and the Commission have already expressed concerns about this issue last year. This change empowers an administrative office to transfer cases from one Court to another. If applied to a case concerning EU law, it could raise issues of incompatibility with the EU obligation to provide for remedies sufficient to ensure effective legal protection and to the right to a fair trial as foreseen by the Charter of Fundamental Rights. Everyone has the right to a pre-established and reviewable determination of which judge will hear his or her case. This is essential to prevent arbitrariness. The Commission already raised this matter with the Hungarian authorities last year and has reserved its rights to launch an infringement procedure on this matter. On 12 April, the Hungarian authorities have forwarded to the Commission a draft law that would modify the rules of the application of the transfer of cases. According to the Hungarian authorities this draft addresses the Venice Commission concerns. This will have to be carefully assessed by the Commission.

Third, the restrictions introduced by Article 5.1 of the Fourth amendment to the publication of political advertisements. Article 5.1 provides restrictions on the publication of political advertisements during election campaigns, including elections to the European Parliament. Whilst limitations may be acceptable in some cases, they would only be lawful if they are duly justified and proportionate. According to this provision, political advertisements could only be published on "public media services". It should be noted that the audience share of private media where the restriction would apply represents almost 80% in Hungary. On 15 April the Hungarian authorities wrote to the Commission submitting a change to these rules. These new draft rules will need to be subjected to a more detailed analysis.

This list is by no means exhaustive and the Commission will continue its legal analysis on the matter. Once the legal analysis is finalised, the Commission will, where relevant, take the necessary steps in order to start infringement procedures.

The analysis that the Commission is currently finalising will be thorough, sound and objective and will reflect the special responsibility and quasi-jurisdictional role of the Commission as guardian of the Treaties.

President, Honourable Members,

Let me stress that this is not the first time the Commission has had to intervene in Hungary. Last year, the Commission already had to launch two infringement cases against Hungary:

A first case concerned the forced early retirement of judges, prosecutors and notaries. In November 2012 the Court of Justice confirmed the Commission's legal analysis and declared the related Hungarian legislation incompatible with EU law. Under Article 260(1) TFEU, Hungary is required to take the necessary measures to comply with the judgment of the Court and the Commission continues to analyse the compliance by Hungary with this judgment. Although implementing legislation has been passed to comply with the judgement we have not seen the actual reinstatement of these people into their previous posts. The Commission has regularly been insisting that Hungary applies the judgment of the Court swiftly and in full.

A second case concerns the violation of the independence of the Data Protection Authority and the termination of the mandate of the former Commissioner for Data Protection. This case is still pending before the Court of Justice. Last month the Commission reiterated its concerns to Hungary stressing that the independence of a data protection supervisory authority is a key requirement of EU law. The Commission regrets that in spite of the case pending before the Court, Hungary has now even gone a step further by incorporating the premature termination at constitutional level through the Fourth amendment.

So much for EU law; now for the rule of law. Hungary will also need to take due account of the opinion that the Council of Europe/Venice Commission will deliver in June, in full accordance with both European Union and Council of Europe principles, rules and values. The Commission expects a responsible answer from Hungary to this opinion.

President Barroso has also highlighted to Prime Minister Orbán the work of this Parliament in preparing the Resolution being adopted in June on "the situation of Fundamental Rights in Hungary: standards and practices" and based on the work of MEP Rui Tavares. The Commission expects the Hungarian authorities to engage in a political dialogue with this House in order to address any conclusions the Resolution may contain.

The Commission can assure this House that it will continue to call for the legislation to be made compatible with EU law and the rule of law to be respected. The Commission has urged and continues to urge the Hungarian authorities to act in a responsible manner and in the best interest of Hungary and of the EU as a whole.

I acknowledge that we have received an immediate response to President Barroso's letter. We will now need to analyse the drafts changes and verify their compatibility with EU law which I hope can be the case.